Partly allowed

Vinayakrao Kisanrao Shinde, Died Thr. L.Rs. Bhagirathibai and Ors. v. Ashok Vithalrao Shinde and Ors.

Bombay HC4 Feb 2013WP/5843/2012

Case brief

AI extract

What is this about?

Petitioners challenged the admission of an unsealed agreement in evidence in a suit. The High Court ruled that since possession was transferred or continued under the agreement, it is deemed a conveyance under the Bombay Stamps Act. Consequently, the document must be sent for impounding and duly stamped before being read in evidence. The petition was partly allowed to set aside the rejection of th

What did the court decide?

Impugned order rejecting the prayer to receive the document in evidence without stamping set aside. Plaintiffs allowed to read the agreement in evidence only after the court sends it for impounding an

Vinayakrao Kisanrao Shinde, Died Thr. L.Rs… — Writ and Judicial Review | Bombay HC (2013)

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1 WP 5843 of 2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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Writ Petition No.5843 of 2012

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*	Vinayakrao s/o Kisanrao Shinde Deceased through his legal representatives:	) ) ) )
1)	Bhagirathibai w/o Vinayak Shinde, Age 55 years, Occupation : Household, R/o Salimba, Taluka Wadvani, District Beed.	) ) ) ) ) )
2)	Meena w/o Tukaram Patil, Age 36 years, Occupation : Household, R/o Warvati, Taluka Kurudwadi, District Solapur.	) ) ) ) ) )
3)	Ganesh s/o Vinayak Shinde, Age 34 years, Occupation: agriculture, R/o Subhash Road, Beed, Taluka and District Beed.	) ) ) ) ) )
4)	Umesh s/o Vinayak Shinde, Age 32 years, Occupation: agriculture,	) ) )
	R/o Salimba, Taluka Wadvani, District Beed.	) ) )
5)	Sarika w/o Shahaji Patil, Age 30 years, Occupation : Household, R/o Arsudi, Taluka Boom, District Osmanabad.	) ) ) ) ) )
6)	Menka w/o Shrimant Patil, Age 28 years, Occu: Household, R/o Mardi, Taluka Lohara, District Osmanabad.	) ) ) )

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	2	WP 5843 of 2012
7)	Rajesh s/o Vinayak Shinde,	)
	Age 25 years, Occupation : agriculture, R/o Subhash Road, Beed, Taluka and District Beed.	) ) ) ) )
8)	Ramrao s/o Kisanrao Shinde, Age 52 years, Occupation : agriculture, R/o Khadki Devla, Taluka Wadvani, District Beed.	) ) ) ) ) )
9)	Shahurao s/o Kisanrao Shinde, Age 40 years,	) )
	Occupation : agriculture, R/o Khadki Devla,	) )
	Taluka Wadvani, District Beed.	) )
10)	Suresh s/o Kisanrao Shinde, Age 35 years, Occupation: Medical Practitioner, R/o Subhash Road, Beed, Taluka and District Beed.	) ) ) ) )
		) ..Petitioners
11)	Radhabai w/o Kisanrao Shinde, Age 72 years, Occupation : Household,	) ) )
	R/o Khadki Devla, Taluka Wadvani, District Beed.	) )
	Versus
1)	Ashok s/o Vithalrao Shinde, Age 56 years, Occupation : agriculture, R/o Dhekanmoh, Taluka and District Beed.	) ) ) ) )
		)
2)	Madan s/o Vithalrao Shinde, Age 54 years, Occupation : agriculture,	) ) )
	R/o Subhash Road Beed,	)
	Taluka and District Beed.	)

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	3	WP 5843 of 2012
3)	Suresh s/o Vithalrao Shinde,	)
	Age 40 years,	)
	Occupation : agriculture,	)
	R/o Dhekanmoh,	)
	Taluka and District Beed.	)Respondents.

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Shri. G.K. Naik-Thigle, Advocate, for petitioners.

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Shri. S.D. Gayal, Advocate, for respondent Nos.1 to 3.

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CORAM: S.S. SHINDE, J.

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DATE: 4^th FEBRUARY, 2013

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ORAL JUDGMENT:

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1. Heard learned counsel for the parties.

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1. Rule, made returnable forthwith.

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1. At the outset the learned counsel for the

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petitioners submits that he is restricting his arguments to only point that an agreement which is tried to be tendered in the evidence by the respondents being inadmissible for want of requisite stamp duty and registration no evidence

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in proof thereof can be led. The learned counsel invited my attention to the provisions of Section 34 of the Bombay Stamps Act 1958 and provisions of Article 25 of Schedule I

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4 WP 5843 of 2012

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Explanation I and submitted that, before the aforesaid document is read in evidence, or, if it is allowed to be read, it is required to be properly stamped as per the aforesaid provisions. The learned counsel has further invited my attention to the contents of the agreement, which is placed on record, and submits that, recitals of the agreement would clearly show that the property, which is the subject matter of the suit, which was in possession of the plaintiffs, possession of the plaintiffs is being continued by the said document. Therefore, according to the learned counsel appearing for the petitioners, this petition deserves to be allowed.

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The learned counsel appearing for the respondents submitted that the document is simple agreement. At the relevant time there was no requirement of payment of stamp duty. It is further submitted that possession of the suit property was already given to the plaintiffs way back in the year 1970, therefore, there was no question of giving possession of the suit property to the plaintiffs by way of agreement referred to herein above.

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5 WP 5843 of 2012

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The sum and substance of the arguments advanced by the learned counsel appearing for the original plaintiffs is that by way of said agreement no possession is handed over to the plaintiffs and, therefore, the said document is not required to be stamped and it can straightway be tendered in the evidence.

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I have given due consideration to the rival submissions. Since the learned counsel for the petitioners has restricted his arguments in respect of payment of stamp duty on the said document, other arguments have not been considered in this petition.

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Explanation I to Article 25 of the Bombay Stamps Act, 1958 reads thus:

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“ Explanation I .- For the purposes of this article, where in the case of agreement to sell an immovable property, the possession of any immovable property is transferred or agreed to be transferred to the purchaser before the execution, or at the time of execution, or after the execution of such agreement then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly;

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6 WP 5843 of 2012

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Provided that, the provisions of section 32A shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section;

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Provided further that, where subsequently a conveyance is executed in pursuance of such agreement of sale, the stamp duty, if any, already paid and recovered on the agreement of sale which is deemed to be a conveyance, shall be adjusted towards the total duty leviable on the conveyance.”

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The Hon’ble Supreme Court in the case of Veena Hasmukh Jain Vs. State of Maharashtra, (1999) 5 SCC 725 held thus :

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“ The duty in respect of an agreement covered by Schedule I, Article 25, Explanation I of the Bombay Stamp Act, 1958 is leviable as if it is a conveyance. The conditions to be fulfilled are that if there is an agreement to sell immovable property and possession of such property is transferred to the purchaser before the execution or at the time of execution or subsequently without executing any conveyance in respect thereof, such an agreement to sell is deemed to be a “conveyance”. In the event a conveyance is executed in pursuance of such agreement subsequently, the stamp duty already paid and recovered on the agreement of sale which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance. .......”

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7 WP 5843 of 2012

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It is further held thus:-

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“ . . . . If the legislature thought that it would be appropriate to collect duty at the stage of the agreement itself, if it fulfills certain conditions instead of postponing the collection of such duty till the completion of the transaction by execution of a conveyance deed inasmuch as all substantial conditions of a conveyance have already been fulfilled such as by passing of a consideration and delivery of possession of the property and what remained to be done is a mere formality of execution of a sale deed, it would be necessary to collect duty at the agreement stage itself though right, title and interest may not have passed as such. Still, by reason of the fact that under the terms of the agreement, there is an intention of sale and possession of the property has also been delivered, it is certainly open to the State to charge such instruments at a particular rate which is akin to a conveyance. Therefore, it cannot be said that levy of duty is not upon the instrument but on the transaction.

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The object of the Explanation is clear that if an agreement is entered into and that agreement itself contemplates the delivery of possession of the property within the stipulated time, then such an agreement should be deemed to be a conveyance for the purpose of duty leviable under the Bombay Stamp Act.”

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8 WP 5843 of 2012

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It is not in dispute that the plaintiffs are in possession of the suit property. Upon careful perusal of the contents of the agreement it is abundantly clear that by way of said document possession of the plaintiffs is being continued and, therefore, it necessarily follows that the recitals of the document show that possession of the plaintiffs in the suit property is continued by way of said agreement. Therefore the said document is required to be sufficiently stamped as contemplated under the Bombay Stamps Act. Therefore, before the said document is received in evidence, the concerned Court is required to take appropriate steps in accordance with relevant provisions to send the said document for impounding to the concerned authority.

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In the light of the discussion herein above, this writ petition is partly allowed. The impugned judgment and order to the extent it rejects the prayer of the petitioners not to receive the document in evidence unless said document is properly stamped stands set aside. The plaintiffs be allowed to read the ‘agreement’ in evidence only after the concerned Court sends it for impounding to

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9 WP 5843 of 2012

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the concerned authority and said document is properly stamped. The petition is allowed to the above extent. Rule stands disposed of. The observations herein above in respect of possession of the plaintiffs in the suit property are made only for deciding this writ petition.

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Sd/-

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(S.S. SHINDE, J.)

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rsl

Vinayakrao Kisanrao Shinde, Died Thr. L.Rs. Bhagirathibai and Ors. v. Ashok Vithalrao Shinde and Ors.

Case brief

What is this about?

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Vinayakrao Kisanrao Shinde, Died Thr. L.Rs. Bhagirathibai and Ors. v. Ashok Vithalrao Shinde and Ors.

Case brief

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